The rights, wrongs and Rights of digital images

Fancy a thousand dollar bill? You could get one, if you run a blog, and use an internet image.

The bill in question isn't spendable; it's an invoice, as we call them in the UK, and it's not from the photographer, or the artist. No, it's from a firm of lawyers who scrape the web for pictures. This, you fondly imagine, doesn't concern you, because you don't use pictures that are copyright.

Here's a little story. Some time ago, I wrote a story for my blog, which I illustrated. The picture I chose was a brilliant cartoon and, being a copyright owner myself, I didn't just rip it off. I took a tiny clip from the cartoon, and ran that; and I set up a hyperlink so that if you clicked on the clip, you were transferred to the website of the artist, where you could see the picture.

Just so you understand that this is good etiquette, what you should NOT do, is "scrape" the picture. People who run websites with pictures get very vexed if they see the picture on someone else's web page, and discover that their own server is sending that graphics image out over the internet, every time the other website gets a hit. It costs you money, if people use your bandwidth, but it doesn't generate revenue if the hits are all going to the other site. Do not do this! - if you must use someone else's picture, then download it, and put it onto your own server.

I didn't even put the picture on my own server, as it happens. I included no more than the face of the character in the cartoon. The cartoon is only funny if you see the rest of him, complete with alarm clock, explosives, and caption.

And to make sure there was no problem, I contacted the cartoonist explaining that I hoped he would appreciate the extra links, but that if he was unhappy with seeing even the clip from his cartoon on my site, I'd remove it right away. He instantly responded, saying thanks for the free publicity - which is what you'd expect.

I didn't get a bill, but it turns out that I might well have done.

What is happening in web photography isn't nice. For a start, a lot of people are simply stealing it. They see a nice picture of a mountain or a lake, and they say: "That conveys the nice impression of country coolness!" and they use it for their home page - which is vexing for the photographer who is, really, entitled to be paid for it. Especially, according to photographer Tony Sleep, "when they have a budget for photography, and think the photograph will help their business".

Most bloggers, of course, don't have a budget for photography. If they were facing a choice of paying for a picture or not using a picture, they'd go without the picture.

Most of the time, of course, you assume no one will notice; or, if they do, they won't care. But the ethics of the web are shady, and most of the time, bloggers take the risk - go type almost any name you like into Google Images, and count the number of hits which are blogs, and then factor in the fact that Google doesn't try to cover blogs...there's a lot of images scraping about.

But it seems there is a new enemy: the automated royalty collector. Wendy M Grossman highlighted it in her last net.wars column with the sad tale of a car rental site which had acquired - from free stock - a picture for its website. An invoice arrived, and it turns out the photo is still copyright, not free stock.

How can a photo be owned by two people?

Easily. Residuals used to be the property of the creator of intellectual property. What you did was obvious: you took a picture, and everybody who bought it and used it, paid a fee, but you kept ownership.

Then problems started arising.

Magazines commission pictures. Normally, the purchase would cover first publication rights - but then the magazines started running web versions of their content, and found that the artists and snappers were asking for a repeat fee.

Publishers hate repeat fees, so they started informing people like Tony Sleep that in future they were assigning more than just first serial rights - all rights. And then, if you didn't sign a form on the invoice accepting this, they wouldn't send payment. Many photographers, needing the money, signed.

And then (this is the clever bit) they sold the rights on. I started finding articles I'd written for PC Magazine, for example, on websites in Australia. I'd contact them, and point out that I was a freelance, and owned rights. "Pooh, pooh," they said. "We bought the rights from ZD - the publishers."

Guess who won that argument?

And the result is that there is a whole pool of pictures and stories and other intellectual property which has been purchased by copyright owners. They are companies which don't actually do anything. They simply own copyright, which they buy, the way Michael Jackson bought the rights to the Beatles songs.

And there really is a firm of lawyers in America that doesn't do anything except watch movies and TV and wait till someone starts singing "Happy Birthday!" and as soon as they play more than five bars, they send the bill requesting payment. Being lawyers, they win the arguments that result.